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PROCEDURE - Opening and closing statements by counsel - Trial judge’s duties

Tuesday, March 31, 2020 @ 9:15 AM  

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Appeal by Hebert from his jury conviction for sexual assault. The complainant, the sister of the appellant’s former girlfriend, testified that on the night in question, she had been drinking and asked the appellant to drive her to buy more liquor. She testified that she fell asleep on the return trip and woke up to find the appellant pulling her out of the vehicle and then sexually assaulting her. The appellant testified that he and the complainant had consensual sexual intercourse. In closing argument, the Crown questioned why the appellant had not followed up with the complainant if he had finally had intercourse with a woman he really liked. The trial judge did not caution the jury about the comments but did instruct the jury that what counsel said in their submissions did not constitute evidence.

HELD: Appeal dismissed. In the context of the trial, including the totality of the evidence, the comments made by the Crown in closing argument did not cause prejudice to the appellant. Even if the comments could be considered prejudicial, the trial judge did not err in law by failing to caution the jury. The comments complained of did not render the trial unfair.

R. v. Hebert, [2020] M.J. No. 36, Manitoba Court of Appeal, D.M. Cameron, C.J. Mainella and K.I. Simonsen JJ.A., February 10, 2020. Digest No. TLD-March302020004